Attorneys selected a jury and presented opening statements as the first-degree murder trial of Derek Benham began Monday in Pope County Circuit Court. The charge stems from the 2008 death of Benham’s foster son, 5-year-old Dale Young Jr.

According to opening statements from Benham’s attorney, William O. “Bill” James of Little Rock, and Fifth Judicial District Prosecuting Attorney David Gibbons, the time frame in which the injury that eventually claimed Young’s life could have occurred and the testimony of Benham’s ex-wife, Jennifer Merkey, will be the main points of contention as the trial progresses.

Gibbons said in his opening statement Dr. Daniel Copeland, who operated on Young at Arkansas Children’s Hospital, will testify the impact to Young’s abdomen, which cut off blood flow to a portion Young’s intestines and eventually caused the child to go into septic shock, would have occurred six to 12 hours before the child went into complete cardio pulmonary arrest.

According to Gibbons’ statement, the impact could not have occurred the afternoon of May 5, 2008, when Benham called 911 saying the boy was choking but more likely the night before.

Gibbons said Benham initially claimed the injury occurred while Young was choking on crackers and told 911 dispatch he was performing CPR and was concerned he might have hit the child too hard.

In the defense’s opening statement, James said the claim the injury had to occur within an “eight hour” period was misinformation. James said the autopsy did not provide a time frame and contended the injury could have happened earlier than the night before without anyone knowing its cause.

James opened his address to the jury by saying the only way to convict Benham is to believe the testimony of Merkey. James presented Merkey as an ex-wife seeking revenge on Benham and said Merkey filed two previous police reports concerning Benham, including one alleging he had set fire to her brother’s Jeep.

In July 2009, while Merkey was preparing a meal to take to a family from her church she noticed Benham behaving oddly, Gibbons said in his opening statement. He said Merkey asked Benham what was wrong and he replied, “I did it. I hurt him,” because Young had exposed himself to Benham’s biological daughter. According to Gibbons’ statement, Merkey said, “No, you didn’t,” to which Benham reiterated he did and slammed his hands on a counter to demonstrate. Gibbons said Merkey did not report what Benham claimed until May 2010 after talking to Benham’s first wife, Rebecca Shafer, who recalled speaking to Benham about Young exposing himself to their daughter.

Discussing the two year gap between the child’s death and Merkey’s statement to police, James said, “It’s difficult to believe she sat on that information.”

James said Shafer previously said the exposure incident was not “a big deal,” and may not have occurred the Sunday before Young died. James also said Shafer said she had talked to Merkey, not Benham about the exposure.

Jury selection

Through three rounds of questioning of prospective jurors, Gibbons inquired if jurors would have difficulty not researching items on the Internet during nights before trial dates, if they would be prejudiced against witnesses from the Department of Human Services and if they could focus on “elements” presented in the case and not impose “elements” not involved, such as tests conducted on fictitious television programs.

James asked prospective jurors if they could stand their ground should they be outnumbered 11-1 by their fellow jurors, if they believed an ex-wife was capable of lying and if they would hold it against his client if for whatever reason, Benham did not testify. James also asked if the prospective jurors believed people respond to stress differently. He explained in his opening statement Benham crumbled under pressure and waited for his ex-wife’s instruction before calling 911 when Young was choking.

The jury is made up of nine women and three men. Both alternate jurors, who must attend all sessions in the court in case other jurors are unable to appear, were women.